In our last update of 1 November, we commented on the first of the two cases heard on 11th and 12th October in the Western Cape High Court. Here we explain the second case – the appeal against the interim interdict issued by Deputy Judge President Goliath in March 2022 with regard to the redevelopment of the River Club.
On the 18th March 2022, Judge Goliath issued an interim interdict, which halted construction pending the findings of the review (which will consider the lawfulness of the authorisations given by the City of Cape Town and Western Cape Government to proceed with the redevelopment of the River Club). The LLPT and the other respondents immediately applied for leave to appeal Judge Goliath’s decision. While the appeal decision was still pending, the LLPT sought an opinion from their own senior counsel as to the appealability of the interim interdict since, in the normal course of the law, an interim interdict is not subject to an appeal. The LLPT senior counsel argued that the interdict handed down by Judge Goliath was final in effect and was therefore appealable.
However, Judge Goliath turned down leave to appeal on 5 May (the day after the LLPT’s counsel’s opinion was delivered), saying that “The main thrust of the application for leave to appeal was on the final effect of this Court’s consultation order. In my view, pursuing an unwarranted appeal on the basis of an order that was abandoned will serve no purpose other than to prolong the litigation and facilitate piecemeal concurrent litigation in the High Court and the Supreme Court of Appeal, which is in none of the interests of the parties, nor the interests of justice. … the interim interdict is no more than an order maintaining the status quo pending the determination of the main proceedings in Part B. I am in agreement with the Applicants … the present appeal will not lead to a just and prompt resolution of the real issues between the parties.”
Nonetheless, following Judge Goliath’s decision, the respondents approached the Supreme Court of Appeal (SCA) to seek leave to appeal. And before the SCA had even considered the matter, the LLPT recommenced construction on site on 27 June claiming that their appeal suspended the interim interdict. On 8 July the OCA and GKKITC applied to the Western Cape High Court to hold the LLPT in contempt of court. This matter has since been persistently postponed. On 27 July, the SCA referred the appeal back to a full bench of the Western Cape High Court on an urgent basis. The appeal was then heard on 11 and 12 October before a full bench including Judge Slingers, Judge Baartman and Judge Lekhuleni.
By the time the appeal was heard, the OCA and GKKITC has been subject to a bombardment of vexatious litigation designed to disable us by draining our resources. The flurry of cases had exhausted our funds and this meant we could not fully defend the appeal beyond our initial replying affidavit. At the appeal hearings, our attorneys indicated we would agree to abide by the decision of the Court outcome.
However, even though we had no counsel arguing in court on 11 and 12 October, our attorney’s explanatory affidavit clarified that the “…decision not to defend these proceedings should not be construed as a concession in so far as the merits of the First to Sixth Appellants' various appeals are concerned.” Rather, we indicated that we believe “…the Deputy Judge President's decision to grant the interim interdict was an appropriate exercise of discretion” based on what was before her. Moreover, the “…prospects of success in the part B review proceedings were now substantially strengthened” as a result of substantial support confirmed in sworn affidavits from 18 indigenous traditional councils and houses. These Khoi and San leaders have all confirmed their spiritual and cultural connections to the site, the fact that they were not consulted in the process and that they did not and do not support the redevelopment – all consistent with High Commissioner Tauriq Jenkins’ founding affidavit.
The reason for agreeing to abide by the court’s decision was therefore a purely “…economic one” since, unlike the LLPT and their supporters, we do not “…have limitless resources at our disposal in this litigation (which now encompasses multiple ancillary proceedings).” We therefore took “…a calculated decision to concentrate all available funds on properly prosecuting the review proceedings” where we believe our case is very strong.
We believe Judge Goliath’s decision to grant an interim interdict was correctly based on evidence presented and argued before her in court and that her decision to interdict the construction was sound. We are therefore hopeful the panel of three judges considering the appeal will uphold her finding and dismiss the appeal.
What was of note is that during the Appeal arguments, Advocate Paschke for the City of Cape Town, made an admission that, should the final review find against the approvals, the court has the power to order the demolition of the building currently constructed. He raised this argument simply to claim that there was no urgency in our case since we could find a remedy later, even if the buildings were fully built. This is a somewhat disingenuous argument used simply to undermine the urgency of our original application.
But it is the case that a South African court has ordered a fully constructed building to be demolished after finding the construction was illegal.
The SCA found in favour of a lower court decision that a large residence had to be demolished because it had been built unlawfully (Lester vs Ndlambe Municipality). The Court noted that “One is acutely aware of the financial calamity, inconvenience and disruption which the demolition of what is plainly an expansive, luxurious dwelling, and a primary residence to boot, would cause Lester. But the upholding of the doctrine of legality, a fundamental component of the rule of law, must inevitably trump such personal considerations…”
Take a look at the size of the Amazon building in the image above – construction that the LLPT has pursued trying to create facts on the ground that would influence the balance of convenience. We believe that what is unlawful must come down and the courts have ordered such an action in the past.
We plan to hold the City of Cape Town to account if the Western High Court does find the approvals were unlawful and demand that they order the demolitions of the current behemoth constructed for Amazon on a sacred floodplain of high environmental sensitivity. A construction that should never have been permitted to happen.
But what is abundantly clear is that money is being thrown at this case so as to immobilise us in court. We cannot pursue this case and the campaign effectively with our hands tied economically behind our backs. Hence, we appeal to supporters of our campaign to support us financially to keep the case going. If everyone who has signed this petition contributed R20 or US$1, we would be in a much stronger position to fight this case fully. Please support us by contributing at our fundraising site. Any donation of any size will make a huge difference
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